Rule of law vs. rule of Ashcroft

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ST. LOUIS -- The president, understandably, has been focusing on foreign affairs. He has designated to his attorney general the authority to deal with all potential domestic acts of terrorism. The attorney general has taken charge and has rounded up hundreds of aliens and foreigners, sometimes with warrants and sometimes without. He has held hundreds of them incommunicado and has not released their names.

The attorney general declares that "a gang of cutthroat aliens are a menace to our nation. Detention does not constitute imprisonment nor even deprivation of liberty without due process of law."

Earlier, the attorney general handpicked his own FBI director who obsequiously accompanies the attorney general in the contemporary manner of Robin following Batman. The attorney general has pointed out that the Constitution and Bill of Rights were "very liberal" and, in a time of emergency, national safety took precedence over fine concern for constitutional rights.

For some weeks, the tide of public opinion has been with the attorney general. People fear that the security of the nation is at stake and that the attorney general is simply, as he puts it, "trying to safeguard America against catastrophe." A few law professors -- including those from Harvard, the University of Chicago and Washington University -- and a few editorial writers have quietly spoken out against the attorney general's views.

From time to time, the attorney general has issued a general warning to the public about potential bombings and assassination plots. In addition, police departments and state militias have been advised to prepare for emergencies. When the emergencies did not occur, when there were no bombs or assassinations, The New York Times began to wonder if the attorney general was suffering from "hallucinations."

There is a growing awareness that the attorney general is using all of his anti-alien tactics as a stepping-stone to the presidency.

All of the foregoing sounds familiar in post-Sept. 11 America. In fact, however, this is not a recitation of current events. It is a recitation of history, specifically, the activities of Woodrow Wilson's attorney general, A. Mitchell Palmer.

In 1919 and 1920, Palmer sensed the fear in America that "a nativist excitement" was sweeping the land. People were worried about the civil war in the Soviet Union. Strange-looking immigrants from Poland, Italy and Eastern Europe were flooding into America. Palmer, in speaking before WASP audiences, always got a good response by saying he believed in "undiluted Americanism."

Palmer himself led some of the raids to round up the "dangerous aliens." The FBI director assigned 24-year-old J. Edgar Hoover to accompany and assist Palmer on these raids. At the time, Hoover was director of the Radicals Division of the FBI and eagerly chased after thousands of immigrants. Hoover loved the publicity and though it would help him get the top job at the FBI. He was right.

President Wilson had suffered a stroke and was out of it when Palmer was allowed to run amok. The ailing president had only one interest: ratification of the League of Nations treaty. Wilson would not talk about any other substantive matter. Wilson's wife, Edith, became de facto president. Palmer believed that inflaming voters' nativist fears would open a path to the White House. His belief was unfounded. Palmer was defeated at the 1920 Democratic National Convention by Gov. James Cox of Ohio who, in turn, was defeated by Warren Harding in November.

Attorney General John Ashcroft, like Palmer, looks upon the Bill of Rights as an inconvenience and an impediment to vigorous law enforcement.

Yes, we are at war. Yes, there are circumstances where aliens can be treated in a different, but still constitutionally protected, manner. But Ashcroft wants to throw out the Bill of Rights in toto.

He claims the right to listen to telephone conversations between the accused and his attorney. He orders secret, nonjury trials before three military officers with hearsay and illegally obtained evidence allowed. Throw in some rumors for good measure. Anything goes. Guilt does not require proof beyond a reasonable doubt. A 2-1 vote is all it takes. No right of appeal.

The Wall Street Journal advocates speedy justice. How about trying them on Day One, hang them on Day Two?

It is one thing to have military trials of terrorists captured in Afghanistan where there is chaos and a total absence of any judicial process. It is another thing to have secret trials in the United States with absolutely no regard for fairness or fundamental constitutional rights.

Ashcroft cites Franklin D. Roosevelt's authorization in World War II of secret trials of German saboteurs captured in America. Roosevelt's legacy has been irreparably tarnished by that kangaroo court and by his indefensible order to intern all Japanese-American citizens and noncitizens alike for the duration of the war. When one talks about civil liberties and civil rights during the Roosevelt era, the person to talk about is Eleanor, not Franklin.

The single greatest symbol of America is our faith in the rule of law. That symbol is besmirched by the rule of Ashcroft.

Thomas F. Eagleton is a former U.S. senator from Missouri.